U’s Turn
A new consensus statement regarding the role of Treatment as Prevention in HIV criminalization reform gains supportby Chip Alfred

On July 13, 2017, ten leading human rights organizations issued the Consensus Statement on HIV “Treatment as Prevention” in Criminal Law Reform, along with an appeal for endorsement from organizations and individuals that support the reform of HIV criminal laws. The statement acknowledges that the original endorsers—The Center for HIV Law and Policy (CHLP), The Counter Narrative Project, Housing Works, the National Association of Criminal Defense Lawyers, the National Center for Transgender Equality, the National LGBTQ Task Force, PFLAG, the Prevention Access Campaign(PAC)/U=U Campaign, Treatment Action Group, and Women with a Vision—agree “that reliance on viral load or compliance with medical treatment as a basis to reform HIV criminal laws poses dangerous consequences for those who lack access to care. It also contradicts everyone’s basic right to make health care decisions, including whether and when to get treatment, without running afoul of the criminal law.” Kate Boulton, the CHLP staff attorney that led the effort, tells A&U the impetus for the statement came from conversations on the state level about the role of new scientific developments, specifically viral suppression, in advocacy efforts and the reform of HIV criminal laws. “Not everyone in our community is virally undetectable, and we know that treatment access and reaching durable viral suppression is characterized by really significant disparities, including among people of color and other marginalized communities like sex workers or undocumented immigrants,” she says. “We don’t want to be putting forth modernized laws that hinge guilt or innocence or criminal culpability based on your health status or your compliance with a treatment regimen.”

Bruce Richman, founding executive director of PAC and the “Undetectable = Untransmittable” campaign, says the purpose of the statement was to provide guidance and resources on how U=U fits into the bigger picture of the modernization of HIV criminal legislation. “Some folks say U=U is the best development for criminalization reform, and others say it will create an underclass of people who are not undetectable and who will be subject to the laws. Those are the folks who are most likely already neglected by the system. It’s complex, and we needed guidance from experts.”

“The laws have always been unjust,” Boulton remarks. “We reject the laws because they discriminate against people solely on the basis of health status; they are also very stigmatizing.” She explains that the main problem isn’t that these criminal laws are being used to prosecute people who are undetectable. It’s that most of the laws don’t require intent to harm, any meaningful risk of harm, or transmission in order to prosecute PLHIV. “The laws punish people who had no intent to do any harm, and the punishments are extremely harsh.”

At press time, more than seventy endorsers had signed on to the consensus statement. The originating endorsers hope to see these resources disseminated as widely as possible. The purpose of the Consensus Statement is to serve as a resource in efforts to modernize HIV criminal laws, particularly for statewide coalitions and advocates. The website (www.hivtaspcrimlaw.org) provides links to a variety of resources that can help support the use of the statement, as well as an FAQ.

“We want people to be mindful of the unintended consequences of pursuing laws that could exclude people who are not virally suppressed,” Boulton comments. “We want to see laws that recognize a much broader scope of risk reduction measures—not just if a person was virally suppressed. We want to recognize all the things a person could have done to reduce risk whether that’s using a condom, pulling out, and being on treatment.” She says she looks forward to having more conversations with advocates on the state level and getting people to pause and focus on reform efforts that address the challenges facing all people living with HIV.

Richman adds, “Our work with U=U was about changing the definition of what it means to live with HIV. That impacts everything including the laws that criminalize it. If being on effective treatment means there is no risk of transmission, that’s a defense against laws that are based on risk. U=U is a movement created by people with HIV for everyone living with HIV.” He says that U=U has a tremendous impact on HIV prevention, but the heart of the campaign is social justice. “We can’t leave anyone behind. None of us living with HIV is inherently dangerous because of our sero status, and the laws need to reflect that.”

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